The White House
President George W. Bush
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For Immediate Release
September 6, 2006

Fact Sheet: The Administration's Legislation to Create Military Commissions

      President Discusses Creation of Military Commissions to Try Suspected Terrorists
      In Focus: National Security

Today, The Administration Submitted Draft Legislation To Create A Strong And Effective Military Commission Structure.  This structure will help meet the President’s objective of winning the War on Terror and ensuring terrorists can be prosecuted for their crimes in full and fair trials.  Detaining, questioning, and, where appropriate, prosecuting enemy combatants for war crimes and other terrorism-related offenses is critical to protecting our Nation and winning the War on Terror.

Creating A New Code Of Military Commissions

The Bill's New Code Of Military Commissions (CMC) Adapts Relevant Provisions Of The Uniform Code Of Military Justice (UCMJ) To The Military Commission Context.  The Administration has carefully reviewed the procedures of the UCMJ and adopted or adapted certain UCMJ articles that would be appropriate for these military commissions.  The Bill would provide for the trial by military commission of unlawful enemy combatants, including members of al Qaeda, the Taliban, and other international terrorists.  The Bill codifies the CMC as chapter 47A to Title 10 of the United States Code following the UCMJ, which is now at chapter 47. 

The Bill Uses Existing Court-Martial Procedures Where They Make Sense For Terrorists, But Separates The Military Commission Process From The Court-Martial Process Used To Try Our Own Service Members. The proposed procedures for military commissions would be separate from the UCMJ provisions for courts-martial of U.S. service members, with separate implementing rules. 

The CMC Tracks The UCMJ Structure In Many Respects.  The Bill establishes a system of military commissions, presided over by a military judge, with commission members drawn from the Armed Forces, and prosecutors and defense counsel from the JAG Corps.  The accused may also retain civilian defense counsel if he or she so chooses.  Trial procedures, sentencing, and intermediate appellate review generally parallel the processes currently provided under the UCMJ.  The bill also provides for appellate review by the United States Court of Appeals for the District of Columbia Circuit, as provided for under the Detainee Treatment Act of 2005 (DTA).

The CMC Provides The Accused With Substantial Due Process Rights, Including:

The Bill Departs From The UCMJ In Some Respects, Where The UCMJ’s Provisions Would Be Inappropriate Or Impractical In The Trial Of Terrorists.

The CMC Eliminates The UCMJ's Article 32 Investigation, Which Is A Pre-Charging Proceeding Similar To A Civilian Grand Jury But Considerably More Protective Of The Accused.  Such a proceeding is unnecessary and inappropriate for the trial of captured terrorists, who are already subject to detention under the laws of war.

Adding Definition To Common Article 3 Of The Geneva Conventions

The Bill Contains Several Provisions Addressing The Supreme Court's Ruling That Common Article 3 Of The Geneva Conventions Applies To Our Armed Conflict With Al Qaeda.  If left undefined by statute, the application of Common Article 3 would subject those who fight to defend America from terrorist attack to an uncertain legal standard that may be influenced by foreign tribunals.  United States senior civilian and military leaders accordingly have requested that Congress provide clear statutory definition of United States obligations under Common Article 3. 

Some Of The Terms In Common Article 3 Are Inherently Vague.  Many of the provisions of Common Article 3 prohibit actions that are universally condemned, such as "violence to life," "murder," "mutilation," "torture," and the "taking of hostages."  However, Common Article 3 also prohibits "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment." This phrase is susceptible to uncertain and unpredictable application.

Without The Clarification Provided By The Proposed Legislation, The Meaning Of Common Article 3 – The Standard That Now Applies To The Conduct Of Our U.S. Personnel In The War On Terror – Would Change Based On The Evolving Interpretations Of Tribunals And Governments Outside The United States.  The Supreme Court has said that in interpreting a treaty provision such as Common Article 3, the meaning given to the treaty language by international tribunals must be accorded "respectful consideration," and the interpretations adopted by other state parties to the treaty should be given "considerable weight." 

The Standards Governing The Treatment Of Detainees By The United States In The War On Terror Should Be Clearly Defined By U.S. Law, Consistent With Our International Obligations.  The Bill defines our obligations under Common Article 3 by reference to the U.S. Constitutional standard already adopted by Congress in the Detainee Treatment Act of 2005 (DTA).

The DTA Settled Questions About The Standard Governing The Treatment Of Detainees By The United States In The War On Terror.  The DTA's baseline standard fully satisfies our international obligations under Common Article 3, and the Bill makes this clear for all purposes under Federal law. 

The Meaning And Application Of The Vague Terms In Common Article 3 Also Raise Questions About Possible Criminal Liability – The War Crimes Act, 18 U.S.C. § 2441, Makes Any Violation Of Common Article 3 A Felony Offense For U.S. Personnel.

Addressing Judicial Review Of Detainee Claims

The Bill Addresses Hamdan's Holding That The DTA's Judicial Review Provisions Do Not Apply To The Hundreds Of Habeas Petitions Now Pending In Federal Courts.  The Bill makes clear that the DTA does govern all challenges by detainees to their detention or trial before a military commission, allowing review only of final Combatant Status Review Tribunal (CSRT) determinations and military commission judgments.  The Administration believes this was Congress's intent under the DTA, that it makes sense to restrict the accused's ability to pursue appellate remedies until after the CSRT or military commission trial has been completed, and that our courts should not be misused to hear all manner of other challenges by terrorists lawfully held as enemy combatants in wartime.

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